United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE.
Paul Castonguay has filed a “Motion for Relief from
Judgment Pursuant to Rule 60(b)(4)(6)(d)(1)(2)”
(filing no. 1), which has been docketed as a
petition for writ of habeas corpus, and a supplement to the
petition (filing no. 5). Conducting an initial
review under Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts, I conclude
that the petition should be dismissed.
lacking in specifics, it is apparent that Castonguay seeks
relief from a judgment of conviction entered in the Douglas
County District Court of Nebraska and to declare said
judgment void. Liberally construed, summarized and condensed,
Castonguay now attacks his conviction claiming violations of
his rights to a fair trial, to effective assistance of
counsel, and to confront the witnesses against him.
seeks relief from a state-court judgment of conviction which
he has unsuccessfully challenged three times before in habeas
petitions under 28 U.S.C. § 2254. (See Castonguay v.
Tecumseh Institution, No. 4:11CV3145, 2012 WL 1118420
(D. Neb. Apr. 3, 2012) (dismissing petition for writ of
habeas corpus brought pursuant to 28 U.S.C. § 2254 with
prejudice); Castonguay v. Houston, No. 4:13CV3094,
2013 WL 3167947 (D. Neb. June 20, 2013) (dismissing §
2254 habeas petition as successive); Castonguay v.
Department of Corr. Serv., et al., No. 4:15CV3004,
Filing No. 10 (dismissing § 2254 habeas
petition as successive). However, it is clear from the form
of the petition that Castonguay seeks relief pursuant to Rule
60(b) and (d) of the Federal Rules of Civil
Procedure as a standalone request and has not sought
to raise his present request for relief in any of his closed
federal habeas cases. Castonguay cannot use Rule 60 to attack
his state criminal judgment.
is well established that a Rule 60(b) motion may not
be used to ‘relieve a party from operation of a
judgment of conviction or sentence in a criminal
case.'” United States v. Shenett, No.
CRIM.A. 05-431 MJD, 2015 WL 3887184, at *2 (D. Minn. June 24,
2015) (quoting United States v. Hunt, No.
4:07-CR-121, 2008 WL 4186258, at *1 (E.D.Mo. Sept. 5, 2008)
(holding that a defendant's Rule 60(b)(4) motion to
vacate criminal judgment “is frivolous because a
prisoner may not attack the legality of his conviction
through Rule 60(b)”)). Rule 60(b) “is a rule of
civil procedure and thus not available to challenge criminal
judgments, nor may it be used to challenge state judgments of
any sort in federal court.” Sherratt v. Friel,
275 Fed.Appx. 763, 767 n.1 (10th Cir. 2008). “At best,
in its discretion a district court may choose to interpret a
60(b)(4) motion attacking a state criminal judgment as a
§ 2254 petition, but all the strictures of AEDPA will
apply.” Id.(citing Gonzalez v.
Crosby, 545 U.S. 524, 531-35 (2005) (explaining proper
role of Rule 60(b) in habeas cases)).
Castonguay's 60(b) motion as a § 2254 habeas
petition, likewise, affords him no relief. As stated,
Castonguay unsuccessfully challenged this same judgment of
conviction in this court in Case Numbers 4:11CV3145,
4:13CV3094, and 4:15CV3004. Thus, Castonguay would be
required to seek the permission of the Court of Appeals to
commence this successive action. 28 U.S.C. § 2444(b)(2)
& (3)(A). He has not done so, and this matter
must be dismissed. Burton v. Stewart, 549 U.S. 147,
152 (2007) (the district court lacked jurisdiction to
entertain habeas petition since prisoner did not obtain an
order authorizing him to file second petition).
a petitioner cannot appeal an adverse ruling on his petition
for writ of habeas corpus under § 2254 unless he is
granted a certificate of appealability. 28 U.S.C. §
2253(c)(1); 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
22(b)(1). The standards for certificates (1) where the
district court reaches the merits or (2) where the district
court rules on procedural grounds are set forth in Slack
v. McDaniel, 529 U.S. 473, 484-85 (2000). I
have applied the appropriate standard and determined that
Petitioner is not entitled to a certificate of appealability.
THEREFORE ORDERED that Petitioner's habeas corpus
petition (filing no. 1; filing no. 5) is
denied and dismissed with prejudice. The court will not issue
a certificate of appealability in this matter. A separate
judgment will be entered in accordance with this order.
 In relevant part, Rule 60(b) states
that “[o]n motion and just terms, the court may relieve
a party or its legal representative from a final judgment,
order, or proceeding for the following reasons: . . . (4) the
judgment is void; . . . or (6) any other reason that
justifies relief.” Fed.R.Civ.P. 60(b)(4), (6).
Subsection (d) of Rule 60 provides that the rule “does
not limit a court's power to: (1) ...